In Manson v. Careington International Corporation, 4:20-CV-00916, 2021 WL 3912536 (E.D. Tex. Aug. 6, 2021), the court held that plaintiff’s alleged “love/sex addiction” did not qualify as a “disability” under the Americans with Disabilities Act.
From the decision:
Defendant avers, in reliance on the statutory text, that Plaintiff’s “love/sex addiction” cannot give rise to a cognizable disability discrimination claim under the ADA given Congress’s express exclusion of “other sexual behavior disorders” from the definition of disability [Dkt. 3 at 5]. In support of this position, Defendant argues that the American Psychiatric Association excluded sex addiction, a behavioral disorder “which it has also referred to as ‘hypersexual disorder,’ from its Diagnostic and Statistical Manual of Mental Disorders 5 (“DSM-5”) published in 2013” [Dkt. 3 at 6 n.5]. The DSM-5 explains,
[G]roups of repetitive behaviors, which some term behavioral addictions, with such subcategories as “sex addiction,” “exercise addiction,” or “shopping addiction,” are not included because at this time there is insufficient peer-reviewed evidence to establish the diagnostic criteria and course descriptions needed to identify these behaviors as mental disorders.
AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed.), Westlaw S2H16 (May 2013 update) (emphasis added); see Marcelo Piquet-Pessôa et al., DSM-5 and the Decision Not to Include Sex, Shopping or Stealing as Addictions, 1 CURRENT ADDICTION REPS. 172, 173 (2014) (“While the evidence supporting the inclusion of gambling disorder as a behavioral addiction in DSM-5 was considered sufficient, there is still debate on whether other, less recognized forms of abnormal behaviors, such as compulsive buying, compulsive sex or hypersexual disorder, and kleptomania, can be conceptualized as addictions.”).
Plaintiff conversely claims that her “love/sex addiction” is not covered by the exemption in the ADA because it is not a “sexual behavior disorder” [Dkt. 4 at 2-3]. Plaintiff describes her condition as a “mental disorder that requires that she limit her interactions with members of the opposite sex”, which Plaintiff avers is different than a sexual behavior disorder [Dkt. 4 at 2].5 Plaintiff contends that a sexual behavior disorder is marked by behaviors such as “viewing any sexually explicit content or touching oneself or another person in a sexual way” [Dkt. 4 at 2]. However, Plaintiff points to no authority supporting this distinction.6 The plain text of the statute similarly supports no such distinction—the ADA does not limit “sexual behavior disorders” to conditions that manifest through behaviors such as a need for physical contact or viewing sexually explicit material. See 42 U.S.C. § 12211(b)(1). Indeed, the ADA’s non-exhaustive list of exempted disabilities includes several conditions related to sexual behavior that do not involve the behaviors identified by Plaintiff, including “transsexualism” and “gender identity disorders.” Id. “The plain language of the statute indicates that [other sexual behavior disorders are] excluded from the definition of disability no matter how [they are] characterized, whether as a physical impairment, a mental disorder, or some combination thereof.” Doe v. United Consumer Fin. Servs., No. 1:01 CV 1112, 2001 WL 34350174, at *6 (N.D. Ohio Nov. 9, 2001).
Further, no court has recognized a love/sex addiction as a covered disability under the ADA. Other sources have cited with approval Pacenza v. IBM Corp. for the proposition that “sex addition” is not a disability covered by the ADA. No. 04 CIV. 5831 (PGG), 2009 WL 890060, at *1 (S.D.N.Y. Apr. 2, 2009), aff’d, 363 F. App’x 128 (2d Cir. 2010). In Pacenza, the court considered allegations of discrimination under the ADA based upon an employee’s post-traumatic stress disorder (“PTSD”), which manifested itself as a sex addiction. Id. The plaintiff in Pacenza argued that because his sex addiction was caused by his PTSD, he was discriminated against and fired based on his disability, when his employment was terminated shortly after his supervisor became aware that he was utilizing company computers to access “explicit” chatrooms. Id. at *6. The plaintiff argued that IMB “used his improper internet usage as a pretext to justify his termination and disguise its disability and age discrimination.” Id. at *1. The court found summary judgment for IBM proper, concluding that the plaintiff had “failed to establish a prima facie case” for discrimination under the ADA because the evidence did not establish that the plaintiff’s termination for his sex addiction and improper use of company computers was a pretext to termination for his PTSD. Id. at *8. The court in Pacenza further noted that Plaintiff did not attempt to argue that his sex addition itself constituted a disability, explaining that under 29 C.F.R. § 1630.3(d)(1) “a ‘disability’ under the ADA does not include ‘[t]ransvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders[.]’ ” Id. at *10 n.12. The Second Circuit affirmed the district court’s decision finding that the plaintiff “failed to make a prima facie showing of discrimination under the ADA” because the evidence reflected that the plaintiff’s supervisors were unaware of his diagnosis of PTSD at the time of his termination. Pacenza v. IBM Corp., 363 F. App’x 128, 130-31 (2d Cir. 2010). Plaintiff argues Pacenza is not persuasive in the instant case because the disability alleged was PTSD and not sex addiction [Dkt. 4 at 3]. While Plaintiff is correct that the alleged disability was PTSD, the court in Pacenza found the employee failed to state a claim under the ADA because his termination occurred when his employer had knowledge of his sex addiction but not his PTSD diagnosis, meaning the plaintiff had no claim based on a covered disability—the implication being that disclosure of the sex addiction alone was insufficient to show he had an ADA-covered disability.
The Court further considers the Supreme Judicial Court of Maine’s decision in Winston v. Me. Tech. Coll. Sys., 631 A.2d 70, 73-75 (Me. 1993). Upon review of a plaintiff’s claim that he was wrongly “terminated because of his ‘mental handicap of sexual addiction[,]’ ” the Court in Winston determined that sex addiction is a sexual behavior disorder which is excluded by § 504 of the Rehabilitation Act of 1973. Id. at 73-74. Relevant herein, the Fifth Circuit has held that “because the rights and remedies under both [the ADA and the Rehabilitation Act] are the same, case law interpreting one statute can be applied to the other.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287-88 (5th Cir. 2005). Thus, the Winston court’s finding that “[p]laintiff’s claimed [sex] addiction is a sexual behavior disorder[,]” and is not a disability under the Rehabilitation Act, is instructive in the instant case. Winston, 631 A.2d at 74. After determining that the plaintiff’s sex addition was a sexual behavior disorder, the Winston court found that the Rehabilitation Act was not “intended to protect individuals with sexual behavior disorders.” Id. at 75. The court continued: “[w]e further note that the Diagnostic and Statistical Manual does not officially include sexual addiction, [and] that defendant’s psychiatrist’s opinion is based on a very broad ‘process’ addiction model representing the view of a ‘subset’ of physicians, and that the [ADA] also specifically excludes ‘sexual behavior disorders’ from the term ‘disability[.]’ ” Id. …
Plaintiff has wholly failed to provide the Court any legal authority supporting her position that her “love/sex addition” is a disability included under the ADA. Therefore, the Court finds that Plaintiff has failed to allege a disability under the ADA; Plaintiff’s disability-related claims asserted on the basis of a “love/sex addiction” should be dismissed. See e.g., Carter v. Mich. Dep’t of Corr., No. 1:13-cv-37, 2013 WL 3270909, at *7 (W.D. Mich. June 27, 2013) (“[P]laintiff’s alleged propensity for sexual misbehavior does not constitute a ‘disability’ within the meaning of the ADA. The ADA expressly states that ‘disability’ as defined within 42 U.S.C. § 12102(2) does not include ‘sexual behavior disorders.’ ”) (citing Hawkins v. Mich. Parole Bd., No. 98–1045, 1999 WL 506996, at *1 (6th Cir. June 10, 1999)); Oiler v. Winn-Dixie La., Inc., No. CIV. A. 00-3114, 2002 WL 31098541, at *3 n.47 (E.D. La. Sept. 16, 2002) (explaining that plaintiff, who was terminated based in part because he was transgender, did not attempt to bring an ADA claim, and could not bring such a claim, because gender disorders and other sexual behavior disorders are not a disability under the statute).
That said, the court held that – even if plaintiff’s condition did constitute a “disability” – her failure-to-accommodate claim would still be subject to dismissal, noting (inter alia) that plaintiff did not plead “that she informed Defendant of the reasonable accommodations she would require because of her ‘love/sex addiction.'”